Takaki v. Starbucks Hawaii
ORDER DISMISSING COMPLAINT AND DENYING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND REQUEST FOR APPOINTMENT OF COUNSEL re 1 , 3 , 4 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/29/13. " The court dismisses t he Complaint and denies the Application and Request but grants Takaki leave to amend his Complaint no later than August 23, 2013. If Takaki amends the Complaint, Takaki must pay the applicable filing fee. Failure to file an Amended Complaint by Aug ust 23, 2013, will result in the automatic dismissal of this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Alan Y. Takaki served by first class mail at the address of record on July 29, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ALAN Y. TAKAKI,
CIVIL NO. 13-00345 SOM/RLP
ORDER DISMISSING COMPLAINT
AND DENYING APPLICATION TO
PROCEED WITHOUT PREPAYMENT OF
FEES AND REQUEST FOR
APPOINTMENT OF COUNSEL
ORDER DISMISSING COMPLAINT
AND DENYING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES
AND REQUEST FOR APPOINTMENT OF COUNSEL
On July 15, 2013, Plaintiff Alan Y. Takaki filed a
Complaint against Starbucks Hawaii, alleging disability
See ECF No. 1, ¶ 1.
Takaki claims that he was
denied “full and equal enjoyment of goods, service, facilities,
and accommodations” because of his disability.
Id. ¶ 1.
Complaint, Takaki also seeks maintenance and cure.
Id. ¶ 12-13.
Takaki also filed an Application to Proceed Without Prepayment of
Fees (“Application”) and a Request for Appointment of Counsel
See ECF Nos. 3, 4.
The court has screened the
Complaint and determined that it fails to state a claim on which
relief may be granted.
Accordingly, the court dismisses the
Complaint and denies the Application and Request.
grants Takaki leave to amend his Complaint.
On January 16, 2013, at around 4:45 am, Takaki was
seated at the only designated table for handicapped persons in
the Kapahulu Avenue Starbucks.
ECF No. 1, ¶ 6.
that a female shop manager rudely and offensively told him that
he had to give up the table after two hours and had to make a
purchase every hour or leave the premises.
questioned the manager’s manner of speaking, Takaki was allegedly
told that the police would be called if he did not leave the shop
Takaki further claims that he was subjected to
the same rude and offensive treatment for the following two
weeks, until January 31, 2013.
Although Takaki says he was
treated this way because of his disability, see id. ¶ 1, there
are no facts alleged supporting that conclusory allegation.
Takaki does not, for example, allege that nondisabled individuals
were allowed to sit in the coffee shop without a time limit.
Takaki alleges that he has suffered and will continue
to suffer as a result of the defamation of character that he
Id. ¶ 7.
Takaki also alleges that he “shall
potentially lose [his] livelihood” because he was embarrassed in
front of his peers who refer clients to him.
Id. ¶ 9, 10.
Takaki claims that he lost two potential clients who could have
brought in $700,000 in income.
Id. ¶ 8.
alleges that he has not received a single call requesting his
services as a Mortgage Fraud Consultant since January 31, 2013.
Id. ¶ 11.
Takaki’s Application is Denied.
Takaki Has Not Shown that He is Unable to
Prepay Court Fees.
To proceed in forma pauperis, Takaki must demonstrate
that he is unable to prepay the court fees, and that his
Complaint sufficiently pleads claims.
See Lopez v. Smith, 203
F.3d 1122, 1129 (9th Cir. 2000) (applying in forma pauperis
requirements to nonprisoners).
The Application indicates that Takaki has $1,615.00 in
cash or in a checking or savings account and owns a van valued at
Takaki’s expenses include rent and
utilities in the amount of $395.00 per month and medical-related
debt of over $50,000.
The Application also indicates that Takaki
receives disability or worker’s compensation payments.
Takaki does not describe, as instructed on the Application, the
source of his payments, the amount received, and the amount he
expects to receive in the future.
Nevertheless, Takaki says his
gross pay or wages total $1,455.00 per month, which means $17,460
According to the 2013 Federal Poverty Guidelines, the
poverty guideline for a single individual residing in Hawaii is
Thus, Takaki’s yearly income is greater than the
Federal Poverty Guideline and he is not entitled to proceed in
Takaki’s Complaint Fails to State a Claim on
Which Relief May Be Granted.
Further, even if Takaki’s income was below the Federal
Poverty Guideline, the Application would be denied because the
Complaint does not sufficiently plead claims.
Pursuant to 28
U.S.C. § 1915(e), the court subjects every in forma pauperis
proceeding to mandatory screening and orders the dismissal of the
complaint if it is “frivolous or malicious,” “fails to state a
claim on which relief may be granted,” or “seeks monetary relief
against a defendant who is immune from such relief.”
§ 1915(e)(2)(B); Lopez, 203 F.3d at 1126–27 (stating that 28
U.S.C. § 1915(e) “not only permits but requires” the court to sua
sponte dismiss an in forma pauperis complaint that fails to state
It appears that, in Count I, Takaki asserts
discrimination under the Americans with Disabilities Act (“ADA”).
Title III of the ADA provides that “[n]o individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.”
42 U.S.C. § 12182(a).
Takaki fails to assert a valid claim for relief because
he does not allege facts supporting his allegations of
discrimination by Starbucks.
Although Rule 8 of the Federal
Rules of Civil Procedure does not require detailed factual
allegations, “a plaintiff’s obligation to provide the ‘grounds’
of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly, 550
The complaint must “state a claim to
relief that is plausible on its face.”
Id. at 570.
“A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 677 (2009).
“Naked assertions devoid of
further factual enhancement” that suggest only a “mere
possibility of misconduct” are not enough to state a claim for
Id. at 698.
Takaki makes only a conclusory statement that
discrimination has occurred.
Takaki merely asserts that, “if not
for [his] disability, [he] would not have been denied the full
and equal enjoyment of goods, service, facilities, and
accommodations, at the shop located at 625 Kapahulu Avenue.”
ECF No. 1, ¶ 6.
Takaki does not allege any facts showing that he
was treated differently from other customers because of his
disability or that he suffered discrimination because of his
The court dismisses Count I because Takaki fails to
state a cognizable claim upon which relief can be granted, but
gives Takaki leave to amend his Complaint.
Count III (the Complaint does not contain a Count II)
asserts maintenance and cure, which is a maritime law doctrine.1
Under general maritime law, a seaman who is injured or becomes
ill while in the service of a ship is entitled to maintenance and
cure by his employer.
See Gardiner v. Sea–Land Serv., 786 F.2d
943, 945-46 (9th Cir. 1986).
Takaki provides no basis for this
None of the allegations in the Complaint is relevant to
Takaki does not allege an injury during the course
of employment on a ship.
Therefore, Count III fails to assert a
claim on which relief may be granted.
Takaki has not shown that he is unable to prepay the
Additionally, even if he were unable to pay, his
Complaint is deficient and does not state a claim upon which
relief may be granted.
This court denies Takaki’s Application
and dismisses his Complaint with leave to amend.
B. Takaki’s Request for Counsel is Denied.
Pursuant to Title VII, a district court has the
discretion to appoint counsel “in such circumstances as the court
Takaki mentions Defamation of Character in his
Complaint, see ECF No. 1, ¶ 7, but does not assert a defamation
may deem just.”
42 U.S.C. § 2000e-5(f)(1)(B).
whether to appoint counsel, the court should examine: (1) the
plaintiff’s financial resources, (2) the efforts made by the
plaintiff to secure counsel on his or her own, and (3) the merit
of the plaintiff’s claim.
Johnson v. U.S. Treasury Dept., 27
F.3d 415, 417 (9th Cir. 1994).
Takaki’s income exceeds the 2013 Federal Poverty
Takaki reports that he contacted three attorneys to
request representation in this action.
Contacting only three
attorneys is insufficient to establish that Takaki made a
reasonably diligent effort to obtain counsel and was unable to
find an attorney who was willing to represent him on terms that
he could afford.
Finally, Takaki’s allegations do not state a
claim upon which relief may be granted.
request fails to justify the appointment of counsel and is
The court dismisses the Complaint and denies the
Application and Request but grants Takaki leave to amend his
Complaint no later than August 23, 2013.
If Takaki amends the
Complaint, Takaki must pay the applicable filing fee.
file an Amended Complaint by August 23, 2013, will result in the
automatic dismissal of this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 29, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Alan Y. Takaki v. Starbucks Hawaii, Civ. No. 13-00345 SOM/RLP; ORDER DENYING
APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND REQUEST FOR APPOINTMENT OF
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